145
"STEADY AS SHE GOES" – THE
CONSTITUTION AND THE COURT OF
APPEAL OF SAMOA
A H Angelo*
I
INTRODUCTION
In 2012, Samoa celebrated 50 years of independence. It was a year of
celebration, not just of a Constitution, but of constitutional stability in a
challenging and fast-changing world. With political and economic uncertainty
affecting many Pacific island nations, Samoa has maintained a pattern of political
stability and economic prosperity. That stability is an achievement in respect of
which Samoa may take great satisfaction. It is the purpose of this paper to consider
the role of the Court of Appeal in some key constitutional cases and to reflect on
the extent to which the Court has contributed to that stability. The cases are wellknown.1
The focus is on cases of Samoa but a limited comparison, in the conclusion,
supports the overall thesis that "steady as she goes" is a better judicial approach
than one that is less conservative.
II
BRIEF OVERVIEW
A Independence
Western Samoa2 gained its independence on 1 January 1962, after having spent
the first part of the 20th century under various forms of foreign rule. 3 Independence
*
Professor, Faculty of Law, Victoria University of Wellington
1
Attorney-General v Saipa'ia (Olomalu) [1982] WSCA 3 (Olomalu); Taamale v Attorney-General
[1995] WSCA 12 (Taamale); In re the Constitution, Le Tagaloa Pita v Attorney-General [1995]
WSCA 6 (Le Tagaloa Pita); In re the Constitution, Mulitalo v Attorney-General [2001] WCSA 8
(Mulitalo); Samoa Party v Attorney-General [2010] WSCA 4 (Samoa Party). The last in the
series, Samoa Party v Attorney-General, is dealt with here both because of its significance and
because of the appearance in it of the late Helen Aikman QC as counsel for the appellant. She
was a strong supporter of Samoa and advocate of its causes and also a daughter of one of the
leading figures in the preparation of the Constitution.
2
Upon independence, the newly formed state was called Western Samoa. Following a
Constitutional Amendment in 1997, the name was changed to Samoa (and as a result of that
amendment, all references made in law to Western Samoa were to be read as references to
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brought with it the entry into force of a new constitution.4 The Constitution of the
Independent State of Western Samoa was adopted on 28 October 1960, though it
did not come into force until 1 January 1962. The coming into operation of the
Samoa Constitution, and the simultaneous independence of the state of Samoa, was
notable in that the independence of Samoa and the authority of its constitution were
recognised, but not conferred, by an Act of the New Zealand Parliament. 5 Rather,
the new Constitution was autochthonous; it derived its legal authority from the
Constitutional Conventions and a referendum on independence and adoption of the
Constitution.6
Samoa, in 1947 and from then on, had gradually been working towards
independence. Upon becoming a Trust Territory in 1947, Samoa had sent a petition
to the United Nations communicating that their ultimate aim was self-government. 7
As a result, a UN Special Visiting Mission was sent to Samoa. This Mission
recommended the first steps towards self-government.8 Between 1947 and the entry
into force of the Constitution in 1962, Samoa was steadily afforded increasing
levels of self-government, including the establishment of a Council of State and a
Legislative Assembly with limited legislative powers in 1947, 9 an Executive
Samoa). This article refers to the independent State as Samoa which is not to be confused with its
close neighbour American Samoa (which is an unincorporated territory of the United States of
America).
3
Western Samoa was annexed by Germany as a result of the Convention between Germany, Great
Britain and the United States of America for the adjustment of questions relating to Samoa,
Washington, 2 December 1899. In August 1914, as a result of the outbreak of World War I the
islands were occupied by New Zealand troops (on behalf of Great Britain) and this military
occupation continued until the end of World War I. From 1914 until its independence Samoa was
administered by New Zealand, first under a League of Nations mandate, and later under a United
Nations Trusteeship.
4
Western Samoa became independent on 1 January 1962, but Independence Day is celebrated on 1
June each year.
5
Western Samoa Act 1961 (NZ).
6
Alison Quentin-Baxter "The independence of Western Samoa – some conceptual issues" (1987)
17 VUWLR 345. This paper will not discuss the development of this Constitution at length, as
this exercise has already been undertaken (see also Guy Powles "Constitution Making in Western
Samoa" [1962] NZLJ 106-109; 131-134; and C C Aikman "Recent Constitutional Changes in the
South-West Pacific" [1968] New Zealand Official Yearbook 1104).
7
Powles, above n 6, at 107.
8
Report to the Trusteeship Council by United Nations Mission to Western Samoa (Department of
External Affairs, Wellington, Publication No 39, 1947).
9
See Samoa Amendment Act 1947 (NZ).
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
Council with an advisory function in 1952,10 a Council of Ministers in 1959, and
the appointment of a Prime Minister and Cabinet in 1959.11
Two Constitutional Conventions 12 were convened in order to work towards
building a constitution for an independent Samoa. The first, in 1954, adopted a
series of basic principles upon which the future of the state of Samoa could be
founded, such as that it should be a parliamentary system, with a single elected
legislature whose Samoan members would be elected on the basis of matai
suffrage. 13 The second, in 1960, worked with a draft of a constitution which had
been prepared by a 16-member Working Committee on Self-Government, going
through it article by article before approving a final version on 28 October 1960. 14
One thing that the Convention had decided was that it wished to retain a system
in which only matai could be electors in the territorial constituencies. The
Trusteeship Council of the United Nations, the body responsible for supervising the
administration of United Nations Trust Territories, was concerned by this, and
placed considerable pressure on the Samoans to opt instead for universal suffrage.
Eventually the Trusteeship Council relented, but only because the Samoans agreed
that they would hold a plebiscite on the basis of universal suffrage to show that the
people were in full accord with their leaders. Two questions were asked of the
Samoan population: 1. Do you agree with the Constitution adopted by the
Constitutional Convention of 28 October 1960? 2. Do you agree that on 1 January
1962 Western Samoa should become an independent State on the basis of that
Constitution? Eighty-six per cent of those eligible to vote in this plebiscite did so;
83 per cent of whom answered yes to the first question, and 79 per cent of whom
answered yes to the second question.15
10
Samoa Amendment Act 1952 (NZ).
11
Samoa Amendment Act 1959 (NZ).
12
The proceedings of these conventions have been published: 1954 Constitutional Convention of
Western Samoa: Papers and Proceedings (Office of the Clerk of the Legislative Assembly, Apia,
1955) vols 1-4; Official Report of the Proceedings of the Constitutional Convention of Western
Samoa (Legislative Department, Mulinu'u, 1960) vols 1-2.
13
1954 Constitutional Convention of Western Samoa: Papers and Proceedings (Office of the Clerk
of the Legislative Assembly, Apia, 1955) vol 1, B3. The matai is the leader of the family group.
14
Powles, above n 6, at 108-109. The model for the Bill of Rights in the Constitution was the
UDHR.
15
Powles, above n 6, at 109.
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The scene was thus set for the final step in the process: Independence. The
United Nations General Assembly passed a resolution that the Trusteeship
Agreement would terminate as from 1 January 1962. 16 The New Zealand
Parliament also passed legislation which provided that New Zealand would, from
that date, no longer have jurisdiction over Western Samoa,17 and that no Acts of
New Zealand passed on or after that date would have effect in Western Samoa. 18
The New Zealand Act did not, however, confer independence on Western Samoa. 19
B Constitutional Reform
The Constitution of Samoa is entrenched. It may be amended in accordance
with art 109, which states that any provision of the Constitution may be repealed or
amended if it is "supported at its third reading by the votes of not less than twothirds of the total number of Members of Parliament (including vacancies) and if
not fewer than 90 days elapse between the second and third readings of that bill". If
the Parliament wishes to amend art 102, which prohibits the alienation of
customary land, the Bill must also be submitted to a poll of the electors on the rolls
for the territorial constituencies, and it must be supported by two-thirds of the valid
votes cast in that poll before the Head of State can assent to it.
The Constitution has been amended on 14 occasions.20 These amendments have
covered a number of matters including the size of the Cabinet,21 the term of the
Legislative Assembly, 22 the number of persons to be elected for territorial
constituencies, 23 the conditions of office for the Controller and Chief Auditor, 24
and the retirement age of judges of the Supreme Court.25 Importantly in 1997 the
name of the State was changed from Western Samoa to Samoa.26
16
The Future of Western Samoa GA Res 1626, XVI (1961).
17
Western Samoa Act 1961 (NZ), s 3.
18
Western Samoa Act 1961 (NZ), s 4.
19
By way of contrast, Tuvalu's independence was granted to it by the United Kingdom by virtue of
the Tuvalu Independence Order 1978 (UK).
20
Constitution Amendment Acts 12 of 1963, 13 of 1963, 25 of 1965, 10 of 1969, 13 of 1975, 28 of
1975, 15 of 1991, 16 of 1991, 17 of 1991, 3 of 1997, 15 of 1997, 12 of 2000, 2 of 2005, 27 of
2008.
21
Constitution Amendment Act 1991.
22
Constitution Amendment Act 1991 (No 3).
23
Constitution Amendment Act 1991 (No 2).
24
Constitution Amendment Act 1997.
25
Constitution Amendment Act 2005.
26
Constitution Amendment Act 1997 (No 2).
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
C Constitutional Cases
This article focuses on cases decided by the Court of Appeal of Samoa
concerning the Constitution. The Constitution of the Independent State of Samoa is
the supreme law of Samoa by virtue of art 2 of that Constitution.27 Any laws that
conflict with the Constitution can therefore be declared invalid by the courts. By
virtue of art 73, the Supreme Court of Samoa has original jurisdiction to decide
questions relating to the interpretation or effect of the Constitution. Article 80
provides that the Court of Appeal has final jurisdiction on such questions.
The cases chosen for comment here are in particular those that relate to human
rights matters, the electoral system and which also have attained a more than usual
degree of public notice.
III
ATTORNEY-GENERAL V SAIPA'IA (OLOMALU)28
The first important constitutional case to come before the Court of Appeal was
Attorney-General v Saipa'ia (Olomalu). This was an appeal from a Supreme Court
decision of 1982, which had declared ss 16 and 19 of the Electoral Act void. The
Supreme Court had found them to be void because they were inconsistent with art
15 of the Constitution which guarantees equal treatment. Section 16 was declared
void because it allowed only matai to vote in territorial constituencies and s 19
because it provided for a special roll for those of non-Samoan origin. The five
petitioners had all been prevented from being entered on the electoral roll for
reasons relating to these sections.
The Court of Appeal reversed the decision of the Supreme Court, and found that
the sections were not inconsistent with art 15 of the Constitution. The Court
considered that the Supreme Court had read art 15 too widely, and that universal
suffrage rights did not fall within its scope. They noted that the drafters of the
Constitution had deliberately not included a provision about universal suffrage,
despite the fact that there had been recommendations by the United Nations
Visiting Mission in 1959 that one should be included. Other constitutions show that
universal suffrage is normally treated as a separate right with its own provision; it
was therefore not properly dealt with under art 15. The assertion in the Preamble to
the Constitution that Samoa is "an Independent State based on Christian principles
27
Constitution of the Independent State of Samoa, art 2.
28
Attorney-General v Saipa'ia (Olomalu) [1982] WSCA 3. Relating to this case, see also: BH
Arthur "The significance of twenty years" (1984) 14 VUWLR 295; "A-G v Saipa'ia Olomalu and
Others" reported by Campbell McLachlan (1984) 14 VUWLR 275.
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and Samoan custom and tradition" lent further weight to the argument that
universal suffrage was not included in the Constitution because of customary
Samoan practices.
Finally the Court looked at the Constitutional Convention of 1960, and noted
that Professor Davidson29 had made it clear that art 15 was meant to protect the
equality of all people with regards to the ordinary laws of the land, but not with
regard to political rights. Furthermore, a proposed amendment to the Constitution
which had been put to the Convention, and which would have allowed only matai
to be elected but on the basis of universal suffrage was rejected by the Convention.
The Court noted that its use of the records of the Convention was to confirm their
decision, not to found it.
The Court found that the electoral provisions of the Constitution were not to be
found in Part II, the Part dealing with rights, but were elsewhere in the
Constitution. Those provisions allowed for, but did not prescribe, a system where
only matai could vote. Article 15 does not govern parliamentary electoral rights,
and therefore the sections of the Electoral Act did not conflict with it.
The Court noted that the decision did not mean that the Court agreed that
Western Samoa should continue with the matai system as the basis for its elections
into the future. That issue, it said, was not a question of law, but a question of
social and political policy, and therefore any changes needed to be made by
Parliament and not by the courts.
In 1990 the Plebiscite Act provided for a poll of resident citizens of Western
Samoa over 21 years of age, asking if they thought that all Samoan citizens over 21
should be able to vote in elections. 30 By a small majority, those who answered yes
to that question won the plebiscite, and as a result the Samoan Parliament, by an
ordinary Act, 31 conferred the right to vote on all Samoan citizens over the age of 21
and thus introduced universal suffrage to Samoa.
29
Professor JW Davidson was sent to Samoa in 1947 by the New Zealand Prime Minister to report
on the territory. He was subsequently the Constitutional Advisor to the Samoans from 1959-1961.
He is the author of Samoa Mo Samoa and was Professor of Pacific History at the Australian
National University from 1950 until 1973.
30
It also asked if they agreed that there should be a second Assembly for Parliament comprising
members elected in accordance with custom and tradition.
31
Electoral Amendment Act 1990 (Samoa). The right to be a candidate at an election was not
extended universally.
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
IV
TAAMALE32
The 1995 case of Taamale v Attorney-General dealt with the issue of
banishment. The Land and Titles Court had ordered that the appellants and their
children be banished from their village on the application of the Ali'i and Faipule of
that village. 33 It was alleged that the appellants had engaged in insulting conduct,
and had failed to comply with village obligations and penalties. The decision was
appealed to the Supreme Court on the basis that the practice of banishment was
unconstitutional as inconsistent with art 13(1)(d) of the Constitution 34 which
protects citizens' rights to move freely, and reside in any part of Samoa. The
Supreme Court found that the banishment order was not in breach of the
Constitution;35 that decision was appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal. It focussed on the customary nature
of the practice of banishment: The ultimate and most important sanction imposed
by a village council by custom. If removed it would significantly weaken a
council's authority. The second recital in the Preamble to the Constitution was
quoted, as it was in Olomalu, to support the proposition that the Constitution must
be read in light of the fact that Samoa is a state based on custom and tradition. The
Court considered that the practice of banishment formed a part of Samoan law by
virtue of art 111(1), which states that law includes "any custom or usage which has
acquired the force of law in Samoa, or in any part thereof". Though banishment
compromised art 13(1)(d) of the Constitution (freedom of movement), the legal
practice of banishment was held to be a reasonable restriction to this right in
interest of the maintenance of public order.
32
Taamale v Attorney-General [1995] WSCA 12.
33
The village council.
34
There were also a number of other issues around contempt of court which are not important for
the purposes of this discussion.
35
The substantive portions of the judgment are quoted in the Court of Appeal judgment.
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The Court emphasised that the legal practice affirmed in its decision could be
exercised by the Land and Titles Court but only in accordance with the principles
and safeguards which were identified in the decision. 36 Furthermore the Court
noted that there might come a time when banishment was no longer acceptable, as
the content of constitutional rights may develop over time. The case of Olomalu
was referred to as proof of the prospect of development because ten years after that
decision the Samoan Parliament had introduced universal suffrage.37
V
LE TAGALOA PITA38
Also in 1995, the Court of Appeal heard a second constitutional case, relating
again to electoral laws. The case was brought by a group of matai following the
enactment of the Electoral Amendment Act 1990.39 The group contended that that
Act was ultra vires the Constitution because the Constitution did not only allow for
matai suffrage, as had been found in Olomalu, but also served to entrench it. They
also sought a declaration that the General Election held in 1991 on the basis of
universal suffrage was void.
The Supreme Court, in its decision in Le Tagaloa Pita, had held that it was
bound by the conclusion in Olomalu that matai suffrage was not entrenched in the
Constitution. It also said that it agreed with that conclusion, because if it had been
intended that matai suffrage be entrenched, it would have been very simple to
include that entrenchment in express words in the Constitution.
The appellants before the Court of Appeal agreed that the decision in Olomalu
was that matai suffrage was not entrenched in the Constitution. However, they
asked the Court to reconsider that decision and the Court agreed to consider the
issue afresh. 40
The appellants presented a novel argument about the correct interpretation of art
44 of the Constitution, contending that the English version was an incorrect
36
These include, for example, that the jurisdiction of the Land and Titles Court to order banishment
should only be exercised for truly strong reasons. The Court, having made an order, retains
control of that order and may make whatever amending or cancelling order it finds appropriate at
any time. Further, a village council minded towards banishment would be well advised to petition
the Court to make the order rather than to take an extreme course on their own responsibility – the
Court of Appeal in Taamale was not prepared to express any opinion on the question of whether a
village council has the power
37
Electoral Amendment Act 1990 (Samoa). In general representation remains restricted to matai.
38
In re the Constitution, Le Tagaloa Pita v Attorney-General [1995] WSCA 6.
39
Discussed above at Part II.
40
To this end, counsel invited Cooke P and Keith J to recuse themselves on the grounds of their
earlier involvement in the Olomalu case.
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
translation of the Samoan version. They said that the terms fa'a-alalafaga, nu'u and
pitonu'u, which were translated as constituencies, villages and sub-villages
respectively, are Samoan concepts which refer to matai, and that this meaning is
lost in the English translation. They argued that an 'a'ai is a settlement of people
without a matai (ie a village), but fa'a-alalafaga, nu'u and pitonu'u cannot exist
without matai.
The Court noted that art 112 of the Constitution deals with linguistic differences
by stating that the English and Samoan versions of the Constitution are equally
authoritative but that the English text prevails in the case of a difference between
the two. However, the Court did not find that to be a sufficiently satisfying answer,
so it went on to state that one of the terms (for constituencies) was actually
invented for the Constitution at the Constitutional Convention. The other terms had
been authoritatively translated for many years as village and sub-village, and the
Court had no doubt that the words referred to territories and their peoples. The
people exercising authority in those territories were associated with the territory
and its people, but were not synonymous with it. Furthermore, the Court queried
why, if the translation was incorrect, it had not been raised previously, for example
in the Constitutional Conventions, or in Olomalu.
The Court entered the caveat that even if it had found that the appellants had
raised a real doubt about the correctness of the Olomalu reasoning, the Court would
still have had carefully to consider whether it would be appropriate to depart from
the precedent.
The Court therefore came to the same conclusion as in Olomalu - that matai
suffrage was not entrenched.
They also considered, in greater detail than in Olomalu, the issue of the special
entrenchment of art 102, which prohibits the alienation of customary land. The
normal requirement for amending a constitutional provision is that at the third
reading of the Bill the amendment must receive the support of two-thirds of all the
members of Parliament. The special requirement for amendment of art 102 requires
additionally that the amendment receive the support of two-thirds of all electors of
territorial constituencies at a poll. The appellants' contention was that universal
suffrage resulted in a diluting of the matai vote at such a poll, and thus the
safeguard would be lost. The appellants argued that this was inconsistent with the
fundamental role of matai as stewards of customary land. The Court, while
accepting that that argument must be given some weight, found that it was
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outweighed by other considerations. Even with a diluted matai vote, there were still
safeguards in place to protect customary land.
VI
MULITALO V ATTORNEY-GENERAL41
This case was brought by five matai who objected to the 2000 amendment of
the Electoral Act 1963, whereby the residential requirement for eligibility to stand
for election was extended from 12 months to 3 years. All five appellants had
returned to Samoa more than twelve months previously, in order to be eligible to
stand for election in the General Election to be held in March 2001. The
amendment to the residential qualification had the result that they became
ineligible to stand for election. The five matai felt as a consequence that they had
been unfairly treated. They alleged breaches of art 14 (rights regarding property)
and art 15 (freedom from discriminatory legislation) of the Constitution.
The Supreme Court found that there had been no breach of the Constitution. In
particular it noted the decisions in Olomalu and Le Tagaloa Pita relating to the
right of Parliament to determine electoral qualifications. Even if the amendments
were unfair, they were not unconstitutional.
In the Court of Appeal, the correctness of the decision in Olomalu, and the
application of that decision in Le Tagaloa Pita, was once again challenged.
Counsel for the appellants suggested that a new paradigm was created by the words
in the Preamble of the Constitution declaring Samoa to be a state based on
Christian principles and Samoan custom and tradition, and that the Court had to
give effect to it. The Court rejected this, stating that words in a Preamble do not
allow a Court to extend the meaning of the Constitution beyond the clear and
unequivocal words of the Constitution.
The Court also noted that though the Court was open to persuasion as to new
interpretations of the Constitution, "the need for certainty and stability are also
fundamental tenets in any constitutional interpretation" and therefore the Court
would not lightly depart from previous interpretations.
VII SAMOA PARTY V ATTORNEY-GENERAL42
The most recent major constitutional case to come before the Court of Appeal
again raised issues of rights in relation to elections. In 1995 s 105 of the Electoral
Act, which relates to the bringing of election petitions, 43 had been amended to limit
41
In re the Constitution, Mulitalo v Attorney-General [2001] WCSA 8.
42
Samoa Party v Attorney-General [2010] WSCA 4.
43
An election petition is the procedure of challenging the result of an election.
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
their availability. Following the amendment, apart from the right of the Electoral
Commission to bring a petition, only winning candidates and candidates who
gained at least 50 per cent of the vote that the winning candidate in the electorate
had obtained could bring a petition. 44 The Samoa Party challenged the
constitutionality of the amendment on the grounds that: (1) it was inconsistent with
the Constitution of Samoa and therefore void pursuant to art 2 of the Constitution;
(2) it breached the doctrine of separation of powers; and (3) it breached the
constitutional guarantee of a system of representative and constitutional
government.45 The Supreme Court found against them on all three grounds.
In the Court of Appeal the three main grounds of appeal were: That the
limitation in s 105 violated the right to fair trial in art 9 of the Constitution, that the
limitation violated the right to be free from discrimination in art 15 of the
Constitution, and that the limitation violated two rights which are not expressed in
the Constitution but which are implicit in it. These two implicit rights were said to
be the right of voters to participate in elections which are free and fair, and the
right of voters to bring petitions by way of election petitions to enforce free and
fair elections. The appeal was dismissed.
In reaching its decision, the Court of Appeal briefly considered the Constitution
as a whole before dealing with each of the three grounds of appeal.46
The head of appeal relating to the right to a fair trial failed because the Court,
following the reasoning in Olomalu, held that the right to vote in Samoa was a
statutory, and not a constitutional right. The appellants' argument had been based
on the assertion that the right to vote was a civil right, and that inherent in that right
was the right to challenge elections which were not free and fair. They argued that
under art 9 they were entitled to some sort of public hearing in this respect. 47 The
Court disagreed, stating that it was necessary to have regard to the particularities of
44
The right to challenge an election by means of a private prosecution brought pursuant to s 11 of
the Criminal Procedure Act 1972 against a Member of Parliament alleging electoral corrupt
practice also remains intact. Such a prosecution, if successful, would disqualify the Member of
Parliament from holding their parliamentary seat under s 10(e) of the Electoral Act 1963.
45
Samoa Party v Attorney-General [2009] WSSC 23 at [1].
46
The question of the separation of powers in the Constitution of Samoa was discussed extensively
in the decision of the Supreme Court but not pursued in the Court of Appeal. The Supreme Court
accepted the general principle of separation of powers and its presence in the Constitution of
Samoa but noted that the doctrine is an abstract one and that apart from providing against a
monopoly of government power, the operation of the doctrine is a Constitution-specific matter.
47
At [16].
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the Constitution. 48 The Constitution of Samoa contains no right to vote. Therefore
the argument that there is a constitutional right to challenge an election result
which corresponded to a constitutional right to vote must necessarily fail. 49
The second head of appeal, relating to freedom from discrimination, failed for a
similar reason: No constitutional right was breached. Article 15 protects against
discrimination on the basis of personal characteristics, but does not protect from
discrimination on the basis of the number of votes a person receives in an
election.50
The third head of appeal, relating to alleged implicit rights, received more
attention from the Court than did the first two. The Court used largely Australian
authorities to decide whether it was necessary to imply rights into the Constitution.
It was acknowledged that sometimes it will be necessary to look behind the text of
the Constitution, 51 but that because the Constitution of Samoa was a 'modern'
document, the Court should be slow to depart from the text too much by engaging
in judicial interpretation.52
VIII COMMONALITIES
This part considers what the Court of Appeal decisions have in common, with a
view to demonstrating the steady and careful approach of the Court to
constitutional matters.53
A Unanimity of Decisions
The immediately apparent commonality is that the findings were all unanimous.
This can be interpreted as part of the Court's appreciation of the need for certainty
and stability in matters of constitutional development.
B Role of Precedent
A further expression of this appreciation is the Court's reluctance to depart from
its own precedents in constitutional cases. In Le Tagaloa Pita the Court was asked
to depart from the Olomalu interpretation of the Constitution relating to suffrage.
48
At [19].
49
At [22].
50
At [28].
51
At [32].
52
At [37]. The role of precedent was an important factor in this discussion.
53
Not all commentators take the same view as the author, with some arguing that the Court of
Appeal should be more activist in its approach, see for example BH Arthur, above n 28, where it
was argued that the courts have an obligation to the people to intervene in cases such as Olomalu.
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
The Court said that no real doubt was raised as to the correctness of the Olomalu
decision, but noted nevertheless that they would have been reluctant to consider
reversing it even if there had been some merit in the argument because "[a]
Constitution is a living and evolving thing. The course of its development by
judicial interpretation should not be dramatically reversed on no more than finely
balanced arguments." This notion was affirmed in Mulitalo when the Court noted
that "the need for certainty and stability are also fundamental tenets in any
constitutional interpretation. The Court will not lightly embark on a new approach
unless there are compelling reasons for doing so."
C Role of the Court
The Court of Appeal has over the years also stressed the fact that its role is to
interpret law, and not to initiate policy development. While occasionally making
statements which suggest that it is not satisfied with some of the findings the law
requires of it, the Court has nonetheless acknowledged that it is bound to interpret
the law as it stands: It is for the legislature to take steps towards constitutional
development where it sees fit. In Olomalu the Court, in a postscript-like fashion,
stated that "the present judgment does not imply any view on the part of the Court
about whether or not continuing to use the matai system as the main basis for
elections to the Legislative Assembly is in the long-term interests of Western
Samoa." The Court went on to note that the question of suffrage, on its
interpretation of the Constitution, was a question "not of law, but of social policy…
to be decided by Parliament, not by the Courts."
After Olomalu the Legislative Assembly did introduce universal suffrage, and
the constitutionality of this was challenged in Le Tagaloa Pita. The Court noted
there that this shows that "the new generation, thinking hard and long about the
matter and drawing on the wisdom and experience of earlier generations, has taken
a fresh stick."54 This also happened in Taamale where the Court stated:
… we by no means exclude the prospect that as Western Samoan society continues
to develop the time may come when banishment will no longer be justifiable. As
envisaged as possible in … Olomalu's case, the practical content of a constitutional
right may evolve over the years. The introduction of universal suffrage in Western
54
The terminology 'fresh stick' came from a Samoan saying which one of the matai had introduced
in argument in Le Tagaloa Pita: "Just as a green stick cannot be broken, Samoan custom is too
vigorous to be disregarded in this generation. But the next generation will probably do something
different just as every season a fresh stick is used to knock down the breadfruit, and it will be up
to that generation to reshape the electoral system to suit themselves."
157
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Samoa within a decade of that case is a striking illustration of how progress may be
achieved if not unduly rushed.
In Samoa Party it was similarly clear that the Court was not entirely
comfortable with the state of the law, but that it was convinced its decision was the
right one in law: 55
Certainly to restore to voters or even to runners-up, the right to bring an election
petition would provide still greater protection of the public interest in free and fair
elections. But Parliamentarians, faced with the harsh reality of securing revenue, are
not answerable to the Court but to the community as to how they allocate it. For a
court to rule otherwise would place it, not Parliament, in breach of the
Constitution…
It can be concluded that the Court has a preference for the status quo while
indicating, where appropriate, a path for possible future developments. The Court
is unwilling to interfere in matters which are not strictly legal, and it takes very
seriously the limits on its power under the Constitution.
D The Customary Context
In Taamale (the only case considered here which did not relate to electoral law)
the Court approached the issue of banishment very cautiously. On the one hand, the
Court recognised the importance of the customary punishment of banishment. They
accepted that it had attained the force of law and that removing it would
significantly weaken the authority of the village councils. On the other hand, the
Court was careful to restrict its judgment - rejection of the argument that
banishment is unconstitutional - to cases coming before the Land and Titles Court.
The Court noted that it was not expressing any opinion on whether village councils
have the authority to order banishment. It also noted that banishment orders should
only be made where it was truly essential, and should be made in accordance with
the principles and safeguards identified in the decision.
The Court in Taamale emphasised the importance of applying the Constitution
"with due regard to its Samoan setting". The Constitution itself, in the second
recital in the Preamble, emphasises the importance of custom and tradition, which
place the Constitution within the context of "an Independent state based on
Christian principles and Samoan customs and traditions." Samoa Party directs that
the Constitution is to be interpreted in light of the Preamble, 56 and that it is
necessary to examine with care the particular characteristics of the Samoa
55
At [55].
56
At [8].
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
Constitution, which may differ markedly from others. 57 Mulitalo warns, however,
that the words of the Preamble cannot be used to extend the meanings of words in
the Constitution beyond their clear meaning, rather it just sets the scene. In
undertaking its interpretation exercise in Le Tagaloa Pita the Court stated that it
would "consider the words of the provisions principally in issue, the constitutional
and legal context in which they appear, and the wider social and historical context
in which they are to be understood."
Discussion in Le Tagaloa Pita, in Olomalu, and in the Samoa Party case,
looked specifically back to the Constitutional Conventions for the purpose of
confirming the Court's interpretation.
Certainly there would be little point in the Court of Appeal making decisions
which paid scant regard to the Samoan context. Were the Court to dismiss custom
or traditional practices as irrelevant, or pay only lip service to them, it is unlikely
the decisions would gain respect in Samoa and might not be widely followed or
enforced. It is important to note that in all the cases considered here, the appellate
judges were past or present members of the New Zealand or Australian judiciary.
In the case of Taamale, where custom was at issue, these non-Samoan judges
found it appropriate to give weight to the decision of the indigenous Samoan Chief
Justice, and essentially quoted his judgment verbatim in the appeal judgment.58
IX
THE APPROACH OF THE TUVALU COURT OF APPEAL IN
TEONEA59
The approach to constitutional interpretation pursued by the Samoa Court of
Appeal can be contrasted with the different approach taken by the Tuvalu Court of
Appeal in the case of Teonea, where more emphasis is placed on universalist
notions of human rights than on culture and tradition. As is clear from some of the
effects of that decision, it is an approach which neither promotes stability, nor
helps promote the rule of law.
57
At [19].
58
The Land and Titles Court Judge in Taamale was Sapolu CJ, who was Samoan. The Court of
Appeal Judges on that case were Cooke P and Casey and Bisson JJ. By way of contrast, the
Supreme Court Judge in Olomalu was St John CJ, who was Australian. The Court of Appeal
Judges in Olomalu were Cooke P and Mills and Keith JJ.
59
Teonea v Pule o Kaupule o Nanumaga [2009] TVCA 2.
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A Facts
The case of Teonea dealt with the sensitive issue of religious freedom. The
Falekaupule of the island of Nanumaga in Tuvalu had decided in 2001 that, in
order to preserve peace and order on the island, the four religions already present
on the island were enough. 60 They resolved that any new religion to come to the
island would not be allowed to spread its belief. After members of the Assembly of
God had sought permission to preach on Nanumaga the Falekaupule passed
another resolution in early 2003 stating that no new religion or church was allowed
to establish itself on the island.
In July 2003 Teonea came to Nanumaga to preach on behalf of the Brethren
Church, which had arrived on Funafuti 61 in 2001 and which was a registered
religious body.62 This upset some people on Nanumaga and a third resolution was
passed which stated that new religions, meaning those not already on the island,
were restricted. The Tuvalu Brethren Church members on Nanumaga decided to
continue meeting in spite of the resolution. Some young men threw stones at one of
their meetings, damaging the building in which it was being held and causing
minor injuries. As a result of that, after discussion with the police and the elders of
Nanumaga, Teonea and other Brethren Church leaders left the island.
Teonea instituted proceedings claiming that the prohibition on his practising of
his religion on Nanumaga was a violation of his rights under ss 23(1),63 24(1),64
25(1)65 and 27(1)66 of the Constitution of Tuvalu. Essentially the argument was that
the three resolutions of the Falekaupule in relation to religious practice on
Nanumaga were unconstitutional.
B Relevant Constitutional Provisions
The current autochthonous Tuvaluan Constitution came into operation in 1986.
It replaced the 1978 independence Constitution of Tuvalu, which was drafted in
London.
60
Those four religions were the Seventh-Day Adventist Church, the Jehovah's Witnesses, the Baha'i
faith and the Christian Church of Tuvalu (Te Ekalesia Kelisiano Tuvalu).
61
The main island of Tuvalu.
62
Having registered under the Religious Bodies Registration Act on 2 September 2002.
63
Freedom of thought, religion and belief.
64
Freedom of expression.
65
Freedom of assembly and association.
66
Freedom from discrimination.
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
The Preamble to the 1986 Constitution guides the implementation of the
Constitution by setting out the Principles of the Constitution. These include such
things as the belief that Tuvalu must take its rightful place amongst the community
of nations, while maintaining stability by retaining Tuvaluan values, culture and
tradition. 67 One of these values is identified as being traditional forms of
community. 68 The life and laws of Tuvalu should be based on both respect for
human dignity and on acceptance of Tuvaluan values and culture. 69 The final
principle acknowledges the reality that values and culture will inevitability change,
and that their development should not be unnecessarily hampered.70
These principles are all preambular. As such, they would not on generally
accepted common law principles form a substantive part of the Constitution. They
can be used to guide interpretation, but not to change the meaning of clear words in
the Constitution.71 To avoid doubt about the role of the Preamble in the Tuvaluan
Constitution, these principles were reinforced substantively by specific references
to them in several articles of the Constitution, a number of which were relevant to
Teonea.
Section 13 of the Constitution states that the principles in the Preamble "are
adopted as part of the basic law of Tuvalu, from which human rights and freedoms
derive and on which they are based."
The sections on which Teonea was challenging the constitutionality of the
resolutions, apart from s 27,72 are subject to s 29, which states, inter alia, that:
(3) Within Tuvalu, the freedoms of the individual can only be exercised having
regard to the rights or feelings of other people, and to the effect on society.
67
Constitution of Tuvalu, Principles of the Constitution (3).
68
Ibid, at (4).
69
Ibid, at (6).
70
Ibid, at (7).
71
This is the common law position on the use of preambles in interpretation. For a discussion of the
use of preambles in constitutional interpretation in the Solomon Islands context, see The Minister
for Provincial Government v Guadalcanal Provincial Assembly (11 July 1997) unreported, Court
of Appeal, Solomon Islands, Civ App 3/1997. For a discussion of that case see: Kenneth Brown
and Jennifer Corrin Care More on Democratic Fundamentals in Solomon Islands: Minister for
Provincial Government v Guadalcanal Provincial Assembly (2001) 32 VUWLR 653.
72
Constitution of Tuvalu, ss 23, 24 and 25.
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(4) It may therefore be necessary in certain circumstances to regulate or place some
restrictions on the exercise of those rights, if their exercise(a) may be divisive, unsettling or offensive to people; or
(b) may directly threaten Tuvaluan values or culture.
C The Result
The courts in this case thus found themselves negotiating the difficult tension
which is often encountered in the Pacific between individualistic universal human
rights standards on one hand and communitarian local customs and values on the
other.73
The decision of the High Court of Tuvalu fell on the side of custom and found,
using the language of s 29 of the Constitution, that the appellant's actions were
divisive, unsettling and a direct threat to the culture and values of Nanumaga. The
decision focussed on the fact that ss 23-25 are subject to s 29. The Chief Justice,
Gordon Ward, stated that "our Constitution… is firmly founded on the desire of the
legislature, as an expression of the wish of the people, to hold to their traditions
even if to do so means that some individual rights may be curtailed or restricted."74
The Court did not rule on the merits of the Falekaupule's decision, but simply said
the Falekaupule was entitled to make the decision.
The Court of Appeal overturned the decision of the High Court by a 2:1
majority. Fisher JA, in the majority, while acknowledging that "[t]he Constitution
of Tuvalu goes to unusual lengths to preserve a set of values which could be
broadly described as unity, stability and the preservation of Tuvaluan values and
culture…",75 found nonetheless that the Constitution did not intend to place more
weight on Tuvaluan culture and stability than on the protection of fundamental
freedoms.76 He therefore went on to balance the competing values, concluding: 77
I can well understand the view that the threat to Nanumaga stability, culture and
unity is a high price to pay for permitting the introduction of another religion on the
73
For more discussion on this point see Law Commission Converging Currents: Custom and
Human Rights in the Pacific (NZLC SP17, 2006). From the Pacific perspective, and particularly
Samoa's, it is interesting to note that this research was led by the late Helen Aikman QC: see
above n 1.
74
Teonea [2005] TVHC 2.
75
At [107].
76
At [128].
77
At [158].
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
island. However in the end I have concluded that the time has come to allow the
people of Nanumaga their constitutional freedoms.
Paterson JA, also in the majority, also undertook a balancing act. The starting
point for him was the international obligations of Tuvalu to protect fundamental
freedoms. 78 He found that the resolutions were not reasonably justifiable in a
democratic society. 79 He also placed emphasis on the need to weigh traditional
values against the need to develop and gradually change in recognition of the
principle in the Preamble that "Tuvalu must take its rightful place amongst the
community of nations."80
Tompkins JA, in the minority judgment, noted the "very strong emphasis the
Constitution places on Tuvaluan society and culture, unity and respect for
Tuvaluan values." 81 His decision was ultimately based on the finding that the
resolutions were not laws,82 obviating the need to go into the balancing exercise
that would otherwise be necessary. However, he did go on to state that if he had
found the resolutions to be laws he would not have found them unconstitutional
because "in the circumstances here, the protection of Tuvaluan values and culture
should be the dominant consideration."83
D The Aftermath of Teonea
First and foremost, following the Teonea decision the Parliament of Tuvalu
amended the Constitution. This amendment has the effect of preventing a decision
similar to Teonea, where individual rights considerations override traditional
values, being made again. The Constitution (Recognition of Traditional Standards,
Values and Practices) Amendment Act 2010 lists three purposes, as follows:84
(a) To protect the island communities of Tuvalu from the spread of religious beliefs
which threaten the cohesiveness of island communities.
78
At [211].
79
At [212].
80
Constitution of Tuvalu, Principles of the Constitution (7).
81
At [21].
82
At [63].
83
At [35].
84
Section 4.
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(b) To provide the powers necessary to make laws to restrict the exercise of certain
constitutional freedoms, where the exercise of those freedoms is inconsistent
with a law, or an act done under law, which accords with the traditional
standards, values and practices of the island communities of Tuvalu.
(c) To provide legal recognition for the traditional practices of island communities
to limit the establishment of religions on their islands.
The Act goes on to amend the Constitution in a number of sections in order to
make clear the high level of emphasis that should be placed on traditional
standards, values and practices.
Though the Court of Appeal held that the resolutions were unconstitutional,
there was still significant fall-out from the case. This is clear from the fact that the
police on Nanumaga could not or would not enforce the law, and from the fact that
people lost their jobs and were not reinstated. 85 This is evidence of the destabilising
effect that ignoring traditions, customs and values can have on a small traditional
society. The legislature of Tuvalu acted quickly to obviate future such results.
X
CONCLUSION
It may be presumed that had the case of Teonea been heard by the Samoan
Court of Appeal the outcome would have been somewhat different. To begin with,
in constitutional cases the Samoan Court of Appeal has recognised the need for
stability and responded to this requirement, in part, by releasing only unanimous
decisions. This can be contrasted with the 2:1 majority approach taken by the
Tuvalu Court of Appeal.
The Samoan Court of Appeal has also been reluctant to impose constitutional
change upon Samoa and has preferred instead to maintain the status quo, and to
signal in obiter where there seems to be room for development. In Teonea the
Tuvalu Court of Appeal took the opposite approach, with Fisher JA declaring that
he felt it was time to give Tuvaluan people their constitutional freedoms and made
his decision on that basis, rather than allowing the development to occur
85
Following the decision, four cases were brought before the High Court of Tuvalu which had been
filed on 29 July 2008. They all had to do with the establishment of the Brethren Church on
Nanumaga and the Court of Appeal's decision, and were related to unlawful termination of
employment. They were all tried together (Konelio v Kaupule o Nanumaga [2010] TVHC 9).
Three of the claims were dismissed. A fourth claim, against the Attorney-General in respect of
the Ministry of Home Affairs, was successful. That claim was brought by a woman who had lost
her job. The High Court found that that claimant had been wrongfully dismissed from her job at
the Ministry of Home Affairs on the basis of a ruling of the Falekaupule. She was awarded two
years' salary ($11,676.00) plus exemplary damages of $5,884.00.
THE CONSTITUTION AND THE COURT OF APPEAL OF SAMOA
organically at the instigation of the people of Tuvalu and their elected
representatives.
As evidenced above, the Tuvaluan people had specifically written a Constitution
for themselves which placed a strong emphasis on values and culture. And in order
to protect itself from a Court of Appeal which did not respect that, the legislature
had to amend the Constitution to make that emphasis even clearer.
At its milestone 50th year of independence, Samoa can celebrate not only 50
years of its Constitution as an independent state, but also 50 years of constitutional
stability in a world where turmoil and instability have plagued many post-colonial
societies. As the cases discussed in this article demonstrate, the cautious,
consistent, contextual approach the Samoan Court of Appeal has taken to
constitutional cases has made a significant contribution to the maintenance of that
stability.
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